All India Young Lawyers ... vs Govt. Of Nct Of Delhi And Ors.
2006 Latest Caselaw 343 Del

JUDGMENT

Vijender Jain, J.

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1. Rule D.B.

2. All India Young Lawyers' Association (Registered) has filed this writ petition in public interest to espouse the cause of direct recruits to Delhi Higher Judicial service. The prayer made in this writ petition is to issue a writ of mandamus to the Govt. of National Capital Territory Delhi for adding the actual period of practice at the Bar subject to a maximum of 15 years while computing the pensionary and other retiral benefits of a direct recruit to the Delhi Higher Judicial Service.

3. Notice of the petition was issued to the respondents including Govt. of National Capital Territory, Delhi. Pursuant thereto the Govt. of NCT Delhi has through a letter dated 2.2.2006 addressed to the Registrar General of this Court by the Secretary (Law, Justice and Legal Affairs) has partly conceded to the prayer of the petitioner by agreeing to give weightage of seven years of practice at the Bar while computing the pensionary and other retiral benefits of a direct recruit on his attaining the age of superannuation. Ms.Hima Kohli, learned counsel for Govt. of NCT has contended that letter dated 2.2.2006 be placed before the Full Court for its consideration before taking decision in this writ petition. We only observe that the prayer of the learned counsel for Govt. of NCT as contained in the letter dated 2.2.2006 is highly improper. The decision was taken by the Full Court in 1987 and thereafter in 2005. Once the decision has been taken in 1987 and thereafter reiterated in 2005 and on failure of respondents, judicial proceedings already initiated, the request is symptomatic of not concluding the decision regarding this even after a number of years. Now in view of the letter dated 2.2.2006, the controversy has narrowed down. All that we are now required to decide is as to the number of years of practice that can be reasonably added to the length of service of a direct recruit while computing the pensionary benefits.

4. We may at the outset notice that similar question confronted many other States and in this regard three States, namely, Punjab, Haryana and Gujarat have already issued notifications for addition of 10 years of practice at the Bar in case of a direct recruit for the purpose of computation of his/her pensionary benefits. It has also been brought to our notice that Rule 16 of the Punjab Superior Judicial Services Rules which enables a direct recruit to have the benefit of 10 years service at the Bar came under scrutiny of a three Judge Bench of the Supreme Court in State of Punjab Vs. Justice S.S.Page 0657 Dewan, . The question which arose before the Apex Court was whether the said Rule was retrospective or prospective in operation. The Court has held that the Rule was prospective in operation but what is of importance for our purpose is the following observation made by the court. What has been done by amending Rule 16 is to make the period of practice at the Bar, which was otherwise irrelevant for determining the qualifying service, also relevant for that purpose. It is a new concept and a new retiral benefit. The object of the amendment does not appear to be to go for liberalisation. The purpose for which it appears to have been made is to make it more attractive for those who are already in service so that they may not leave it and for new entrants so that they may be tempted to join it.

5. The Govt. of NCT, Delhi in its above referred letter dated 2.2.2006 has agreed to provide weightage of seven years on the ground that the entry into the Delhi Higher Judicial Service by an Advocate requires minimum 7 years of practice at the Bar and therefore those many number of years are logical and reasonable to be added. In our view there is a fallacy in the reasoning adopted by the Government. What has been missed, or to say, overlooked is that it is not only 7 years of practice at the Bar which is a condition precedent for entering into the Delhi Higher Judicial Service but the Rule also requires that a candidate to be eligible for direct recruitment should not be less than 35 years of age and should not be more than 45 years of age. This inevitably means that by the time a person becomes eligible for consideration for appointment to Delhi Higher Judicial Service under the direct recruitment quota he has put in a minimum of 15-18 years of practice at Bar. Furthermore, by the time a person is considered for selection to Delhi Higher Judicial Service in the direct recruitment quota he is between the age group of 38 to 40 years. This aspect of the matter seems to have been completely lost sight of while agreeing to additional seven years of practice by the Govt. of NCT, Delhi. The Delhi Higher Judicial Service Rules relating to recruitment of direct recruits take care of both experience at the Bar and the level of maturity required at this level of judicial service. Here, it will be apt to reproduce the following observation of the Apex Court in All India Judges' Association & Ors. Vs. Union of India & Ors. :-

Lastly we cannot shut our eyes to the reality that on account of the sizeable earnings at the Bar, many times out of proportion to the skill and the labour put in, the competent lawyers are reluctant to accept the judicial posts. There is, thus, a dearth of proper talent available to man the judicial service. It is, therefore, for the health of the administration of justice that attractive service conditions including a higher retirement age, is prescribed for the members of the judiciary.

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6. We may emphasize that judicial service is not a service in the sense of employment. The Judges are not employees. As member of the judiciary they exercise the sovereign judicial power of the State. It will be relevant to note what the Apex Court has observed in All India Judges' Association & Ors. Vs. Union of India & Ors. . The same is as follows :-

As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive.

7. In the light of the above observation of the Apex Court, therefore, a member of the Higher Judicial Service cannot be equated with other officers or public servants. Judicial independence cannot be secured by mere solemn proclamation. It has to be secured both in substance and in practice as the society has got a stake in the independence of judiciary and no price is too heavy to secure it. We fail to understand as to when the High Court of Delhi has recommended that the period of fifteen years of practice at Bar should be taken into consideration for giving pensionary benefits and in the scheme of things the opinion of the High Court in terms of the Rules which amounts to consultation by the State ought to have primacy but that has been ignored. The Supreme Court in Gauhati High Court & Anr. Vs. Kuladhar Phukan & Anr. while dealing with the question with regard to Article 235 of the Constitution of India which deals with control of the High Court over subordinate courts has succinctly put it in the following words :-

8. The doctrine of separation of powers and the need for having an independent judiciary as a bulwark of constitutional democracy persuaded the founding fathers of the Constitution assigning a place of distinction to the judiciary. Chapter VI of the Constitution dealing with subordinate courts seeks to achieve the avowed object of insulating even the subordinate judiciary from the influence of the executive and the legislature. Article 234 provides for appointments of persons other than District Judges to the judicial Page 0659services of a State being made by the Governor of the State in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 vests in the High Court the control over District Courts and courts subordinate thereto. All the matters touching the service career of incumbents in subordinate judiciary including their posting and promotion are subject to the control of the High Court. Once a person has entered in the judicial service, he cannot depart there from save by the leave of the High Court. It is settled by a catena of decisions that the word 'control' referred to in Article 235 of the Constitution has been used in a comprehensive sense and includes the control and superintendence of the High Court over the subordinate courts and the persons manning them, both on the judicial and the administrative side. Even in such matter in which the Governor may make a decision, the decision cannot be taken save by consultation with the High Court. The consultation is mandatory and the opinion of the High Court is binding on the State Government; else the control, as contemplated by Article 235, would be rendered negated. Such control and consultation are not a matter of mere formality; they are the constitutional power and privilege of the High Court, also its obligation, and cannot be diluted by sheer inaction or failing to act when the High Court must act. The Governor cannot proceed to act in any matter relating to subordinate judiciary and bypass the process of consultation merely because the High Court though, 'informed', did not act or respond. The consultation here means meaningful, effective and conscious consultation. In Tej Pal Singh v. State of U.P. it was held that in a matter affecting the service career of a judicial officer ordinarily the initiative for an action must come from the High Court and even otherwise in the absence of recommendation of the High Court an action taken by the Governor would be illegal and devoid of constitutional validity. Such error, if committed, would be incurable and even an ex-post facto approval would not cure the invalidity.

9. The Constitution thus has laid down in a very cogent and comprehensive sense that the total control of the subordinate judiciary would be with the High Court and that control includes superintendence of the High Court over subordinate courts and the persons manning them both on the judicial and the administrative side, the method and manner of their appointment, the Rules governing their service conditions including pensionary benefits, have to be in consultation with the High Court and that consultation is mandatory and the opinion of the High Court is binding on the State Government. While dealing with the matter pertaining to service conditions of the subordinate judiciary, the Apex Court in The Registrar (Administration) High Court of Orissa Vs. Sisir Kanta Satapathy (Dead) by LRs & Anr. held :-

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It is well settled again by a catena of decisions of this Court that the Recommendation of the High Court is binding on the State Government/Governor.

10. A letter was written by the Chief Secretary, Govt. of NCT to the Union Home Secretary. The same is at page 41 of the paper-book. In response to the said letter the Union of India took a stand that the Ministry of Home Affairs vide letter dated 1.1.1997 has already delegated the power for creation of Group A, B, C & D posts both on plan and non-plan sides under the Govt. of NCT of Delhi to the Lt. Governor of Delhi. The Govt. of India further took a stand that the appointments to the post of judicial officers under the Delhi Higher Judicial Service and their service conditions etc. are controlled by the Govt. of NCT of Delhi. Reference in this regard may be made to para 4 of the affidavit of Mr.Anurag Bhalla, Under Secretary, Department of Justice at page 44 of the paper-book. When there exists already a delegation of power, at the first instance, the Govt. of NCT of Delhi ought not to have referred the matter to the Union of India. Mr.Kailash Gambhir, learned counsel for the Union of India has also stated at the Bar that there was no need for the Govt. of NCT of Delhi to refer the matter to Govt. of India.

11. Even otherwise, Delhi High Court which exercises control, superintendence over the subordinate courts and its officers and the judicial staff is the best judge with regard to laying down the conditions of service or pensionary benefits so as to lure good lawyers from the Bar. This function cannot be delegated to any State functionary of the executive. That is why Supreme Court in State of Haryana Vs. Inder Prakash Anand & Ors. laid down that the control vested in the High Court is that if the High Court is of the opinion that a particular judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the mandate of the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the subordinate judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. The Government will act on the recommendation of the High Court. Therefore, when the Full Court of the Delhi High Court has recommended to the respondent nos. 1 & 2 in 1987 at the first instance for amendment of Delhi Higher Judicial Service Rules by inserting Rule 26 (B) which inter alia allowed the period of practice at the Bar before joining of service or a period of fifteen years whichever is less, we fail to understand why the State Government kept quiet from 1987 for almost 20 years. The Full Court of Delhi High Court, we were told by respondent/Delhi High Court, again in 2005 has recommended to the respondent for insertion of Rule 26 (B), which is reproduced below :-

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Rule 26 (B) (1) In the computation of the total period of his service qualifying for pension and other retirement benefits, as member of the service directly recruited from the Bar shall be entitled to add, to his actual period of service, the period of his practice at the Bar before joining the service of a period of 15 years whichever is less.

(2) This rule shall have retrospective effect and shall be applicable also to the officers of the service who have retired before it comes into operation.

12. In view of the judgment of the Supreme Court in Justice S.C. Dewan's case (supra), we are not inclined to grant the benefit of Rule 26 (B) retrospectively. However, having regard to the above, we hereby issue a writ of mandamus to the respondents to issue necessary notification keeping in view the resolution of the Delhi High Court inserting Rule 26 (B) and giving weightage of fifteen years of practice or such other number of years of practice at the Bar whichever is less to the direct recruits while computing their pensionary and other retiral benefits. We make it clear that the notification to be issued by the Govt. of NCT shall have prospective application.

13. Rule is made absolute.

14. Writ petition is allowed.